Ontario Court of Appeal ‘not subtle’ in overturning summary conviction decision

By John L. Hill

Law360 Canada (April 6, 2023, 3:02 PM EDT) --
John L. Hill
John L. Hill
It rarely happens that the Ontario Court of Appeal gets to lecture a Supreme Court of Canada Justice and point out errors in legal reasoning. Yet that appears to be the case in a recently released appeal decision (R. v. Spicer 2023 ONCA 232). In that case, a three-judge panel held that the reasoning of Justice Michelle O’Bonsawin whose 2021 decision was under review (R. v. Spicer 2021 ONSC 398) applied legal principles incorrectly. Michelle O’Bonsawin replaced Supreme Court Justice Michael Moldaver on Sept. 1, 2022,

In the Spicer case, O’Bonsawin was acting as a summary conviction appeal judge (SCAJ). Cody Spicer had been acquitted of a sexual assault on the complainant, L.H., by Justice Robert Graydon after trial in the Ontario Court of Justice.

Spicer and L.H. were employees at an Ottawa restaurant. Both had been drinking at a staff party. L.H. announced her intention to use the washroom but perhaps inadvertently entered the men’s room. Spicer found her washing her hands upon entering the facility. The two admitted that Spicer made comments about her breasts and that she was “looking good.” L.H. testified that Spicer came forward and touched her nipples. He then entered a toilet stall and led L.H. by the hand into the closed area where he attempted to have L.H. perform fellatio. Spicer denied any such assaults. Furthermore, at least two patrons of the establishment entered the washroom while the alleged assault was ongoing.

At trial, Justice Graydon reminded himself on how credibility is to be determined when conflicts in evidence arose using the precepts found in R. v. W. (D.) [1991] 1 S.C.R. 742. The trial judge came to the opinion that on weighing all the evidence he was left with a reasonable doubt that Spicer was guilty and entered an acquittal. The Crown appealed the summary conviction decision to a judge of the Superior Court.

In her 17-page decision, Justice O’Bonsawin reviewed the facts, overturned the acquittal, and ordered a new trial. She found that Justice Graydon had made his decision on “myth-based reasoning” that sexual assaults happen only in private and further that there was no evidence that L.H. had consented to the assaults alleged. Spicer appealed this decision.

The Court of Appeal was not subtle in its conclusion that the SCAJ got it all wrong. The unanimous judgment began its analysis by stating, “While the SCAJ correctly cited the principles applicable to a Crown appeal from an acquittal, in our view, she failed to properly apply those principles. In fact, what the SCAJ did was to revisit the conclusions that the trial judge drew from his factual findings and substitute her own view of them. It was an error for the SCAJ to do so.”

The Appeal Court then went on to say that the trial judge drew logical inferences from the facts before him. He never said sexual assaults happen only in private. He had stated that he had doubt that the nipple grabbing took place when there were so many patrons in the restaurant and people were coming and going from the washrooms on a regular basis. He also accepted that Spicer would not have openly conducted himself in such a manner knowing that his employer had a zero-tolerance for sexual touching.

Furthermore, the appeal court held, the trial judge did not err in finding the complainant had consented to what went on in the washroom stall. In fact, he never made any such finding. “What the trial judge did find was that he was left in a reasonable doubt over the issue of consent” and that “The SCAJ erred in failing to recognize, and give effect to, that difference.”

The Appeal Court reasserted its position that when the Crown appeals an acquittal, an appellate court may only order a new trial if it is reasonably certain that the trial judge would not necessarily have acquitted the accused had no error been made (R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.). Here, Justice O’Bonsawin failed to engage in that analysis or to make that finding.

Many times, an appeal court decision becomes precedential for reinterpreting the law. Other times, the appeal court decision spells out where a lower court judge has erred. In that respect, there is nothing new here. What makes this decision remarkable is who the lower court judge being criticized is. It’s certainly not an auspicious start to a Supreme Court of Canada term.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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